Thompson v. State

Court of Appeals of Georgia, Third Division

July 18, 2018

THOMPSONv.THE STATE.

ELLINGTON, P. J., BETHEL and GOBEIL, JJ.

BETHEL, JUDGE.

Antonio
Thompson appeals from the denial of his motion for new trial
following his convictions for trafficking in cocaine,
possession of cocaine with intent to distribute, possession
of a Schedule I controlled substance with intent to
distribute, and possession of marijuana with intent to
distribute. In his sole enumeration of error, Thompson argues
that the trial court erred by permitting the State to
introduce evidence of certain of Thompson's prior
criminal acts pursuant to Rule 404 (b). Although we agree
that the trial court erred by admitting such evidence, in
light of the overwhelming evidence of guilt presented at
trial, we find that such error was harmless. We therefore
affirm the denial of Thompson's motion for new trial.

OCGA
§ 24-4-404 (b) provides

Evidence of other crimes, wrongs, or acts shall not be
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, including, but not limited to,
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. The
prosecution in a criminal proceeding shall provide reasonable
notice to the defense in advance of trial, unless pretrial
notice is excused by the court upon good cause shown, of the
general nature of any such evidence it intends to introduce
at trial. Notice shall not be required when the evidence of
prior crimes, wrongs, or acts is offered to prove the
circumstances immediately surrounding the charged crime,
motive, or prior difficulties between the accused and the
alleged victim.

As the
Supreme Court discussed in Bradshaw, admissibility
of evidence of other crimes and acts under Rule 404 (b) is
determined by applying the following three-part test:

(1) the evidence must be relevant to an issue other than
defendant's character; (2) the probative value must not
be substantially outweighed by its undue prejudice; (3) the
government must offer sufficient proof so that the jury could
find that defendant committed the act.

Bradshaw, 296 Ga. at 656 (3) (citation omitted).

Here,
in addition to evidence of other prior drug convictions, the
State sought to introduce evidence that in 2001, Thompson was
convicted of possession of cocaine with intent to distribute
and obstruction. The State also sought to introduce evidence
of the circumstances of the 2000 arrest which led to those
convictions; specifically, the State sought to introduce
testimony from the arresting officer regarding Thompson's
obstructive and violent conduct once police confronted and
attempted to arrest him. Over Thompson's objection, the
trial court ruled that this evidence could be introduced with
the purpose of demonstrating Thompson's intent and the
absence of mistake or accident.

At
trial, the State called the officer who arrested Thompson in
2000. The officer testified that on the date of the arrest he
was on patrol near a crowd of people at a festival on Tybee
Island. At that time, he observed what he believed to be a
drug transaction involving Thompson. Thompson began to walk
away when he was alerted to the officer's presence, and
the officer followed him. The officer eventually began to run
and chase Thompson. Upon reaching him, the officer and
Thompson engaged in a "street fight" in which
Thompson was ultimately subdued with the help of two
additional police officers. During that altercation, Thompson
called out to the crowd, asking for help. As Thompson was
being taken into custody, one of the assisting officers
displayed his pepper spray in order to maintain order and
keep bystanders away. The officers located contraband on
Thompson's person. From this incident, Thompson was
convicted in 2001 of possession of cocaine with intent to
distribute, felony obstruction, and misdemeanor obstruction.

While
Thompson does not appear to challenge the introduction of the
evidence of his prior conviction for possession with intent
to distribute, he now argues that permitting the jury to hear
evidence of the circumstances surrounding his 2000 arrest and
his convictions for obstruction violated Rule 404 (b)'s
prohibition on the introduction of character evidence. We
agree.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In the
present case, while Thompson was charged with a variety of
drug offenses, he was not charged with obstruction or any
similar offense. Nor does the record reflect that his arrest
for these offenses involved any type of violent conduct or
obstructive behavior.[1] Thus, even though the trial court was
within its discretion to admit evidence of his cocaine
conviction and the officer&#39;s testimony that he witnessed
Thompson engage in a hand-to-hand cocaine transaction, it
abused its discretion when it allowed the State&#39;s witness
to testify regarding the ensuing pursuit and altercation and
the obstruction convictions stemming from it. That evidence
did not yield any information which would allow the jury to
assess his intent or the absence of mistake or accident
regarding the drug charges against him in this case and was
not otherwise relevant to any issue in the case. Cf.
Booth v. State, 301 Ga. 678, 681-86 (3) (804 S.E.2d 104)
(2017) (evidence of prior conviction for family violence
battery relevant to prove intent to commit aggravated assault
against domestic partner); State v. Jones, 297 Ga.
156, 159-63 (2) (773 S.E.2d 170) (2015) (evidence of prior
DUI conviction relevant to show defendant&#39;s intent to
drive under influence of alcohol in current prosecution for
DUI); Powell v. State, 332 Ga.App. ...

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